Even as the visa fraud and wage dispute woes of the New York-based Indian diplomat Devyani Khobragade remain unresolved, I have a few basic questions that do not throw up satisfactory answers. Perhaps the most important among them concerns the mandatory disclosure of material information by the prosecution that might help the accused.
I refer in particular to one of the sections of the rules governing the special responsibilities of a prosecutor under rule 3.8 as part of the Model Rules of Professional Conduct. That section says the prosecutor shall “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”
I presume that US Attorney Preet Bharara, the lead prosecutor in the case, was aware of the Indian court case and the judicial process against the domestic help, Sangeeta Richard. I am curious to know whether this material information was disclosed. It may well have been but from what I have read I am not so sure. It is possible that the Indian court process against Richard would have at the very least discouraged the authorities from carrying out such an intrusive arrest of Dr. Khobragade. However, as I said, I am not entirely clear about when the prosecution is required to disclose such material information. The standards governing a prosecutor’s conduct say a prosecutor “should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused.”
Far be it for me to make any definite comment about whether Bharara and his team did this as prescribed in the standards. But that still does not stop me from raising the question.
Another question that remains unresolved in my mind relates to the so-called existence of two separate employment contracts between Richard and Dr. Khobragade. In fact, the two contracts have been cited by the prosecution as part of the visa fraud charge. The argument is that one contract, which offered wages in line with the minimum wage requirements in the U.S., was for the purposes of securing Richard’s visa and the other was the actual operational one under which much less wages were offered and agreed to.
Since I have zero expertise in such matters I turned to Neeraj Bhatia, a leading certified public accountant (CPA) in America and India with successful practice in Silicon Valley as well in New Delhi. He is also an immigration consultant with extensive understanding of immigration laws. Neeraj, who has been a longstanding friend of mine, made a general statement that for the kind of visa that Richard sought and obtained does not require any sponsor. The applicant directly approaches the US consulate for a visa with documents that support the case.
It appears that Richard knew of the second contract which allegedly paid her much less than the minimum U.S. wages. She was likely aware of it before she left India. If she was so troubled by it, why did she not make it an issue before leaving? Perhaps she has a perfectly persuasive answer but I am not aware of it. It appears that she acquiesced to the second contract even though she may have thoroughly disliked it.
Another point I am rather curious about is Count one of the charges against Dr. Khobragade that says that “the defendant, willfully and knowingly did make under oath, and under penalty of perjury ….. and did subscribe as true, a false statement with respect to a material fact in an application, affidavit, and other document required by the immigration laws and regulations prescribed there under, and did present such application, affidavit, and other document which contained such false statement”.
It is the applicant, in this case Richard, who is required to sign such a visa application under oath and penalty of perjury. Where is the question of the diplomat making a willfully false statement under oath and penalty of perjury? Even if one accepts for the sake of argument that the diplomat either actively encouraged Richard to make a false statement or subtly enabled her by looking the other way, it is still not her application directly. So my question is—does the penalty of perjury still apply to her?
It is possible that these questions stem from a poor understanding of the laws and standards that apply in this case. I ask them nevertheless because I do not think they have been asked so clearly.
On the issue of salary and wages I defer to Neeraj since that is what he does for a living. “The issue of salary and wages is of particular interest to me. Both here in the US and in India the cash value of benefits and perquisites have to be included in determining the final amount salary and wages. In the US, those would have to be included as part of the wages if that were to be reported on W-2. It seems this material part of the compensation given to the domestic help has not been factored in the wage calculation. It is very likely that after adding the value of these benefits as calculated in New York, the wage amount would come to more than $9.75 per hour,” Neeraj says.
However, he also points out that diplomats and those work for them are exempt from filing their taxes here in the U.S. That is because technically even though they are physically here, they are still considered to be working on Indian territory. If that is the case, he surmises, then the question of applying U.S. wages could be problematic and that could seriously weaken the whole premise of the case.